Act 1, which was enacted on Jan. 1, 2012, made Hawaii the seventh state to legalize same-sex civil unions. Days earlier, two churches and their pastors claimed Act 1 violated their civil rights in a federal lawsuit against the state, Gov. Neil Abercrombie and Department of Health director Loretta Fuddy.
U.S. District Judge J. Michael Seabright denied their bid for a temporary restraining order late Friday.
Emmanuel Temple, the House of Praise; its pastor, Carl E. Harris; Lighthouse Outreach Center Assembly of God; and its pastor, Joel Hunkin, had claimed that they needed a restraining order and injunction “to maintain their 1st, 5th and 14th Amendment rights, without being subjected to injunctions, fines and other penalties for refusing to rent their church grounds for same-sex ceremonies and receptions.”
“The potential for hundreds of Section 1983 actions to swell the court docket for each and every violation of the First Amendment are sure to open the flood gates to a round of intense litigation in this forum,” according to a reply filed early Friday in support of their petition.
The churches claimed they faced imminent threat of sexual-discrimination claims because Act 1 would make them liable for “declining to perform a funeral for a same-sex couple, or for refusing a same-sex couple a same-sex ceremony on church grounds.” This holding, allegedly supported by Hawaii’s attorney general, “places the anti-discrimination provisions of H.R.S. [Hawaii Revised Statutes] 489 … superior to the plaintiffs’ First Amendment rights.”
Judge Seabright noted in his order that H.R.S. 489 prohibits “unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability.” If the Hawaii attorney general or Hawaii Civil Rights Commission bring action for violations of this law, they can seek penalties of no less than $500 and no more than $10,000.
Seabright slammed the churches’ interpretation of Act 1, which reads that “nothing in this section shall be construed to require any person authorized to perform solemnizations pursuant to chapter 572 or civil unions pursuant to this chapter to perform a solemnization of a civil union, and no such authorized person who fails or refuses for any reason to join persons in a civil union shall be subject to any fine or other penalty for the failure or refusal.”
“Act 1, thus, contains ‘immunity’ from fines or penalties if a pastor, such as Harris, refuses to perform a civil union (if such refusal would otherwise constitute illegal discrimination),” the 17-page decision states (parentheses in original). “Act 1 does not, however, contain ‘immunity’ if a church or other religious organization refuses – on the basis that it is opposed to civil unions – to rent or otherwise allow use of its facilities for performing civil unions or hosting receptions celebrating a civil union.”
The “drastic” remedy of the preliminary injunction is unjustified because it was “based upon plaintiffs’ planned refusal to make their facilities available” for civil union events, Seabright wrote.
He added that there is no “realistic danger of sustaining a direct injury” under the statute, and a “general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan.”
“A couple would have to ask, they would have to be denied, and they would then have to file suit,” Seabright wrote, The churches’ original complaint said that private individuals have already initiated complaints with the Hawaii Civil Rights Commission against churches and houses of worship in the last 12 months “for refusing to rent their facilities for same-sex unions and/or marriage ceremonies.”
Their attorney, Shawn Luiz, called the state’s position “absurd” in the reply brief. “The church cannot be forced to allow its property to be used for a same-sex ceremony (an act of sacrilege according to church teachings and the Gospel of Jesus Christ) anymore than plaintiffs could be ordered to allow a civil union of a man and woman on church property (fornication),” the brief states.
Luiz has reportedly said his clients will not hesitate to bring another suit now that Act 1 is actionable.